Legal reasonings + models of legal argumentation

Question 1

ARGUMENTATION

Answer 1

linguistic + social activity aiming at increasing the acceptability of a controversial claim.

speakers advance a set of reasons aimed at justifying/disproving a claim

Question 2

argumentation ≠ internal reasoning

Answer 2

performed publicly

purposes: persuading counterpart/3rd party

develops in a dialectical exchange between at least 2 ppl

Question 3

Contexts of legal argumentation

Answer 3

1. legislative debate
2. litigation context
3. decisional stage
4. justificational stage

Question 4

LEGISLATIVE DEBATE

Answer 4

• obj of controversy: legal proposal/claim of a party
• argumentation follows parliamentary regulations
• outcome = deliberation
• purpose: to convince (the undecided or the pub opinion)

Question 5

LITIGATION CONTEXT

Answer 5

purpose: to persuade decision-makers (judges/jury/court)

Question 6

DECISIONAL STAGE

Answer 6

only concerns systems in which decision-makers is collegial

monocratic judges won’t carry out arguments at this stage (despite the use of the same inferences)

Question 7

JUSTIFICATIONAL STAGE

Answer 7

concerns systems which require pub + written justification

= set of decisional reasons to justify the outcome

purpose: convinec the public of the correctness of the solution

Question 8

role of LOGIC in legal argumentation

Answer 8

logic is the criteria of corectnessof reasoning.

Question 9

REASONING + ≠ types

Answer 9

process that, starting from premises, leads to a conclusion

• deductive resoning
• non-deductive reasoning

Question 10

DEDUCTIVE INFERENCES

Answer 10

if premises T => conclusion necessarily T

Question 11

NON-DEDUCTIVE INFERENCES

Answer 11

conclusion can be F even though premises are T

Question 12

MODELS OF LEGAL ARGUMENTATION

Answer 12

• syllogism - Beccaria
• Wroblewski’s model
• double justification model - Canale + Tuzet

Question 13

SYLLOGISM

Answer 13

• major premis: genaral law
• minor premis: facts => conformity/opposition to the law
• conclusion: liberty/legal consequence

Judges must make only 1 syllogism as it leads to certainty, but if they make another one usig the conclusion it does not mean that the reasoning will lead to certainty.

Question 14

problems of syllogism

Answer 14

• reconstruction of the fact is not always necessarily T or complete
• law is general + open
• legal gaps
• law isn’t always precise (eg: some laws give discretion to judges in assigning the number of imprisonment by giving them a range of years)

Question 15

WROBLEWSKI’s MODEL

Answer 15

judges make 3 decisions on:
- interpretation
- relevance of the facts
- final outcome

premises must be justified

conclusion must be justified by the premises

Question 16

DOUBLE JUSTIFICATION MODEL

Answer 16

internal justification of conclusion (deductive)

external justification of premises (abductive)
->premises are like hp because evidence is not always complete

Question 17

values of double justification method

Answer 17

1. legality: decisions made according to the law
2. legal certainty: predictability of decisions as laws are preexisting + knowable (publicity of the law)
3. equity under the law: alike cases treated the same, ≠ cases treated ≠ly
4. full justification: arguments are given to support premises that justify conclusion

Question 18

EXTERNAL JUSTIFICATION

Answer 18

> premise: normative -> interp/integrative arg

< premise: factual -> evidentiary arg

Question 19

elemts for judicial decision analysis

Answer 19

NEJ (abduction)
IEJ (abduction)
final decision + internal justification (deduction)

Question 20

INTERPRETATIVE ARGUMENT

Answer 20

canons + directives of interp of normative texts

usually defined in legal practice or by the legal doctrine + legal science

Question 21

INTEGRATIVE ARGUMENT

Answer 21

used when there is a gap in the law
=> justifies the construction of implicit/unexpr rule

Question 22

functions of the interp arg

Answer 22

1. decisional function: used as instruments of interp
2. justificatory function: used as reasons explicitly stated in the reasoning of the judicial decision